Tuesday, September 11, 2012

Bail Fail Highlights Broken System

By Thomas Giovanni, Brennan Center for JusticeThis post was originally published 9/11/12 on the Brennan Center for Justice blog as part of JPI Bail Month.

Today, the Justice
Policy Institute released the first of three important reports regarding
bail. The report highlights the consequences of a system dependent upon an
accused person’s ability to pay. It is important to remember that people
subjected to this system are considered innocent according to the law. Yet,
they are penalized nonetheless. JPI, a national non-profit organization, offers
new data and provides recommendations for practical reform.

Entitled Bail Fail,
the study highlights how, in conjunction with the large-scale,
fast-paced, assembly
line nature of the criminal justice system, the bail system creates a
reality where the outcome of a criminal case depends less on the facts of the
case and more on the finances of the person charged. In the criminal justice
system, 80
percent of the accused are too poor to afford an attorney, more than 60 percent are
people of color, and the bulk of the cases are low-level,
non-violent offenses. Most of this population cannot afford bail and are
incarcerated before trial for long periods even though they have not been found
responsible for any crime. Bail Fail notes “60 percent of the
jail population is not convicted but being held pretrial,” and that “this issue
is a huge contributor to the mass incarceration of people in the United States,
resulting in overcrowded facilities and unsustainable budgets.” The report
further points out that “those too poor to pay a money bail remain in
jail regardless of their risk level or presumed innocence . . . U.S. Attorney
General Eric Holder in 2011 stated that keeping people awaiting court dates in
county jails costs around $9 billion each year.” That amount is roughly
equivalent to the annual budget for the Environmental Protection Agency.
Unfortunately, the problems of pretrial incarceration rarely come to the
public’s attention, and when they do, it is in instances that are far from the
norm. The last time the media discussed bail, they were reporting on Dominique
Strauss-Khan. In May 2011, the former director of the International
Monetary Fund was charged with sexually assaulting a Manhattan hotel
housekeeper. Arrested on a Saturday, Strauss-Khan was initially denied bail on
Monday, and then granted bail three days later. Justice rarely moves that
swiftly. He posted $1 million bail and a $5 million bond, and agreed
to remain under house arrest with 24-hour armed guards and electronic
monitoring. His wife paid for the bail and the bond, as well as the estimated
$250,000 monthly security costs. Prosecutors dismissed the charges at the end
of August 2011. Strauss-Khan's experience is very different than that of the
average person who must navigate the bail system.

The average person facing criminal charges does not even have the means to
pay bail of even $500 or $1,000. As a result, they end up in jail before
and during their trial and, because of visitation restrictions, they are unable
to contribute fully to their own defense strategy. As Bail Fail notes,
they are also “put under greater pressure to enter a plea bargain, which has
become the de facto standard in resolving an average of more than 95
percent of cases each year.” Because trials take months to begin, people all
too often capitulate under the harsh conditions of jail and choose to accept a
plea bargain rather than remain in confinement until the end of trial.

JPI’s report presents an opportunity to bring long overdue attention to the
pathologies of bail. In a justice system already overly influenced by
race and class, the wealth-dependent bail system is a key contributor to the
phenomenon of mass incarceration. Enacting JPI’s recommended reforms –
including using risk assessments, using citations to reduce the number of
people arrested, and reforming the bail system to comply with the
Constitution’s equal protection clause – will bring some fairness to this
broken system.

Note: JPI has named September JPI Bail Month and will publish a series of three bail reports on bail, for-profit bail bonding and the community impacts. JPI is also hosting a series of events throughout the month including panel discussions and conference calls.